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MAl>ISON S 1 AMOLTS 

ORioiiN xVi. I J yiTi :r 

VOAIIVST NII.I.Il ICATION 




This is probably one of the most forcible letters ever written against the 
doctrine of Nullification proposed by South Carolina. The letter was really 
written as a reply to a speech by Col. Hayne of South Carolina in favor of 
Nullification. As an interpretation of the spirit and intention of the Consti= 
tution, coming from he who had much to do in framing that instrument 
this letter cannot help but be of vital historical importance. 



Published by 

GEORGE D. SMITH, 

48 Wall Street, New York. 

1912. 



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•lit 

Bi'n 13.1 



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Dear Sir. \ Montpellier ;_— - 

"1 return with my thanks the printed speech of L'ul. Hayne on the 4th of July iast. 
It is blotted with many strange errors, some of a kind not to have been looked for 
from a mind like that of the author. 

1 cannot sec tlic advantage of this perseverance of South Carolina in claiming the 
authority of the N'irginia proceedings in 93-99, as asserting a right in a single State 
to nullify an act of the United States. Where indeed is the fairness of attempting to 
palm on N'irginia an intention which is contradicted by such a variety of contempora- 
ry proofs ; which lias at no intervening period received the slightest countenance 
from her : and which with one voice she now disclaims. There is the less propriety 
in this singular effort, since X'irginia, if she could, as is implied, disown a doctrine 
which was her own offspring, would be a bad authority to lean on in any cause. Nor 
is the imprudence less than the impropriety, of an appeal from the present to a for- 
mer period, as from a degenerate to a purer state of political orthodoxy ; since South 
Carolina, to be consistent would be obliged to surrender her present nullifying 
notions to her own higher authority when she declined to concur and co-operate with 
\'irginia at the period of the Alien and Sedition laws. It would be needless to dwell 
on the contrast of her present nullifying doctrines, with those maintained by her polit- 
ical champions at subset |uent and not very remote dates. 

Besides the external and other internal evidence that the proceedings of N'irginia 
occasioned by the Alien and Sedition laws do not maintain the right of a single State, 
as a party to the Constitution, to arrest the execution of a law of the United States. 
it seems to have been overlooked, that in everx instance in those proceedings where 
the ultimate right of the States to interpose is alluded to. the plural term States, has 
been used : the term State as a single party being invariably avoided. And if it hail 
been suspected that the term respcctk'e in the 3d Resolution would have been miscon- 
strued into such a claim of an individual State or tliat the language of the 7th Resolu- 
tion invoking the co-operation of the other States with Virginia * * * * * * 
would not be a security against the error, a more explicit guard would doubtless have 
been introduce<l. liut surely there is nothing strange in a concurrence and co-oper- 
ation of many parties in maintaining the rights of each within itself. 

It would seem also to be deemed an object of importance, to fix the charge of 
inconsistency on me individually, in relation to the proceedings of N'irginia in 98-99. 
Pint it happens that the ground of the charge particularly relied on. would at the same 
time exhibit the State in direct and pointed opposition to a nullifying import of those 
proceeflings. 

In the 7th Resolution which declares the .\lien and Sedition laws to be "uncon- 
stitutional." this term was followed by "null, void and of no effect" which it is alleged 
express an actual nullification ; and as the\- are ascribed to me. as the drawer of the 
Resolution, it is inferred that I must then ha^^e been a niillifier. tho' now disclaiming 
the character. These particular words, thu' essentially the same with unconstitution- 
al, were promptlv and unanimously stricken out b\' the House. Admitting that they 
were in the ori,i;inal draft of the Resolution, and assuming that they meant more than 
the term unconstitutional, amounting even to nullification, the striking them out turns 
the authoritv of the State precisely against the doctrine for which that authority is 
claimed. 

( )ther. and some not very candid attempts, are made to stamp my political career, 
w ith discrediting inconsistencies. One of these is a charge that I have on some occa- 
sions, represented the Supreme Court of the United States as the judge in the last 

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resort, on the boundary of jurisdiction between the several States and the United 
States ; and on other occasions have assigned this last resort to the parties to the Con- 
stitution. It is the more extraordinary that such a charge should have been hazard- 
ed ; since besides the obvious explanation, that the last resort means in one case, the 
last within the purview and forms of the Constitution, and in the other, the last resort 
of all, from the Constitution itself, to the parties who made it; the distinction is pre- 
sented and dwelt on both in the Report on the Virginia resolutions and in the letter 
to Mr. Everett, the very documents appealed to in proof of the inconsistency. The 
distinction between these ultimate resorts is in fact the same, within the several States. 
The Judiciary there, may in the course of its functions be the last resort within the 
provisions and forms of the Constitution ; and the people, the parties to the Canstitu- 
tion, the last in cases ultra constitutional, and therefore requiring their interposition. 

It will not escape notice that the Judicial authority of the United States when 
overruling that of a State, is complained of as subjecting a Sovereign State, with all 
its rights and duties, to the will of a Court composed of not more than seven indi- 
viduals. This is far from a true state of the case. The question would be between 
a single State, and the authority of a tribunal representing as many States as com- 
posed the Union. 

Another circumstance to be noted is that the nullifiers in stating their doctrine 
omit the particular form in which it is to be carried into execution ; thereby confound- 
ing it with the extreme cases of oppression which justify a resort to the original right 
of resistance, a right belonging to every community, under every form of Govern- 
ment, consolidated as well as federal. To view the doctrine in its true character, it 
must be recollected that it asserts a right in a single State, to stop the e.xecution of a 
Federal law, altho' in effect stopping the law every where, until a Convention of the 
States could be brought about by a process requiring an uncertain time ; and finallv 
in the Convention when formed a vote of seven States, if in favor of the veto, to give 
it a prevalence over the vast majority of seventeen States. For this preposterous and 
anarchical pretension there is not a shadow of countenance in the Constitution ; and 
well that there is not ; for it is certain that with such a deadly poison in it, no Con- 
stitution could be sure of lasting a year, there having scarceK' been a year, since ours 
was formed, without a discontent in some one or other of the States which might have 
availed itself of the nullifying prerogative. ' Yet this has boldl\- bought a sanction 
under the name of Mr. Jefferson, because in his letter to Major Cartwright he held out 
a Convention of the States, as. with us, a peaceable remedy in cases to be decided in 
Europe b\ intestine war. Who can believe that Mr. Jefferson referred to a Con- 
vention summoned at the pleasure of a single State, with an interregnum during its 
deliberations; anrl above all with a rule of decision subjecting nearly three fourths 
to one fourth. No man's creed was more opposed to such an inversion of the repub- 
lican order of things. 

There can be no objection to the reference made to the weakening eft'ect of age 
on the judgment, in accounting for changes of opuiion. Hut inconsistency at least 
may be charged on those who lay such stress on the effect of age in one case, and 
place such peculiar confidence, where that ground of distrust would be so much 
stronger. What was the comparative age of Mr. Jefferson, when he wrote the letter 
to Mr. ( liles, a few months before his deatli. in which his language, tho' admitting 
an construction not irreconcileable with his former opinions is held, in its assumed 
meaning, to outweigh on the Tariff question o])inions deliberately formed in the 
vigour of life, reiterrated in official reasonings and Reports ; and deriving the most 
cocfut sanct'on from his presidential vnessas'es. and private correspondence. W'hat 
again the age of General Sumter, at which the cducurrence of his opinion is so tri- 

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unipliantly hailed? '1 hat his judgment may be sound as his services have been splen- 
did, may be admitted ; but had his opinion been the reverse of what it proved to be, the 
question is justified by tile distrust of opinions, at an age far short of his, whether 
his venerable years would have escaped a different use of them. 

But I find that by a sweeping charge, my inconsistency is extended to "my opinions 
on almost every important question which has divided the public into parties." In sup- 
porting this charge, an appeal is made to "Yates" Secret Debates in the Federal Con- 
vention of 1787." as provmg that I originally entertained opinions adverse to the 
rights of the States; and to the writings of Col. Taylor of Caroline, as proving that 
1 was in that Convention, an advocate for a Consolidated Xafiaiial Government. 

( )f the Debates, it is certain that they abound in errors, some of them very ma- 
terial in relation to myself. Uf the passages quoted, it may be remarked that they 
do not warrant the inference drawn from them. They import "that I was disposed to 
give Congress a power to repeal State laws," and "that the States ought to be placed 
under the control of the General Government, at least as much as they were formerly 
when under the Hritish King and Parliament." 

The obvious necessity of a controul on the laws of the States, so far as they 
might violate the Constitution and laws of the L-nited States, left no option but as 
to the mode. The modes presenting themselves, were first a veto on the passage of 
the State laws. Secondly a Congressional repeal of them, thirdly a Judicial Annul- 
ment of them. The first tho' extensively favored at the outset, was found, on discus- 
sion, liable to insuperable objections, arising from the extent of Country, and the 
multiplicity of State laws. The second was not free from such as gave a preference 
to the third as now provided by the Constitution. The opinion that the States ought 
to be placed not less under the government of the United States than they were under 
that of Great Britain, can provoke no censure from those who approve the Constitu- 
tion as t stands with powers exceeding those ever allowed by the Colonies to Great 
Britain, particularly the vital power of taxation, which is so indefinitelv vested in 
Congress, and to the claim of which by Great Britain a bloody war and final separa- 
tion was preferred. 

The author of the "Secret Debates," tho' highly respectable in his genera! charac- 
ter, was the representative of the portion of the State of Xew York, wli^li was strenu- 
ously opposed to the object of the Convention, and was himself a zealous partizan. 
His notes carry on their face proofs that they were taken in a very desultorv manner, 
bv which parts of sentences explaining or qualifying other parts, might often escape 
the ear. He left the Convention also on the 5th of July before it had reached the 
midway of its session, and before the opinions of the members were fully developed 
into their matured and practical shapes. Xor did he conceal the feelings of discon- 
tent and disgust, which he carried away with him. These considerations may account 
for errors; some of which are self-condemned. Who can believe that so crude and 
untenable a statement could have been intentionally made on the floor of the Con- 
vention as "that the several States were political societies, varying from the loii'est 
corporations to tiie highest sovereigns" or "that the States had vested all the essen- 
tial rights of Government in the old Congress." 

On recurring to the writings of Col. Taylor,* it will be seen that he founds his 
imputation against myself and Governor Randolph, of favoring a consolidated Na- 
tional Government on the Resolutions introduced into the Convention bv the former, 
in behalf of the \'irginia Delegates from a consultation among whom thev were the 
result. The Resolutions imputed that a Government consisting of a National Legis- 

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lature. Executive and Judiciary, ought to be substituted for the Existing Congress. 
Assuming for the term National a meaning co-extensive with a single ConsoHdated 
Government he filled a number of pages, in deriving from that source, a support of 
his imputation. 

* See "New Views," written after the Journal of the Convention was printed. 

mv opinion of the unconstitutionality of the .A.lien and Sedition laws. 

With respect to the supremacy of the Judicial power on questions occurring in 
the course of its functions, concerning the boundary of judisdiction, between the 
United States and Individual States, my opinion in favor of it was as the 41st number 
of the Federalist shows, of the earliest date ; and I have never ceased to think that 
this supremacy was a vital principle of the Constitution, as it is a prominent feature 
of its text. A supremacy of the Constitution and laws of the Union, without a su- 
premacy in the e.xposition and execution of them, would be as much a mockery as a 
scabbard put in the hands of a soldier without a sword in it. I have never been able 
to see, that without such a view of the subject the Constitution itself could be the 
supreme law of the land; or that the uniformity of the Federal authority throughout 
the parties to it. could be preserved; or that without this uniformity, anarchy and dis- 
union could be i)revented. 

On the subject of the Bank alone is there a color for the charge of mutability 
on a Constitutional question. But here the inconsistency is apparent, not real, since 
the change was in conformity to an early and unchanged opinion, that in the case of 
a Constitution as of a' law a course of authorititative, deliberate and continued de- 
cisions, such as the Bank could plead, was an evidence of the public judgment, neces- 
sarilv superseding individual opinions. There has been a fallacy in this case as in- 
deed in others, in confounding a question whether precedents could expound a Con- 
stitution, with a question whether thev could alter a Constitution. This distinction is 
too obvious to need elucidation. None will denv that precedents of a certain descrip- 
tion fix the interpretation of a law, yet who will pretend that they can repeal or alter 
a law. 

.■\nother error has been in ascribing to the intention of the Comrntion which 
formed the Constitution an undue ascendancv in e.xpounding it. Apnrt from the 
difficulty of verifying that intention it is clear, that if the meaning of the Constitu- 
tion is to sought out of itself, it is not in the proceedings of the Bodv that proposed 
it. but in those of the State Conventions which gave it all the validity and authority 
it possesses. 

With friendly salutations, 

Mr. Trist. James Madison." 



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